April 27, 2009

Nova Scotia Practice: “New matters” in re-examination

Filed under: 1 — ruleswatch @ 9:35 am


In the course of cross-examination, the divorce petitioner was asked about personal bank accounts she had maintained after the separation between the parties (perhaps even before) but which she had not disclosed on her statement of financial information. The evidence was that she had transferred money from the joint account of the parties into these personal accounts.

The Judge, Justice Beryl MacDonald, found there was no doubt the evidence was relevant: “What she did with the money after these transfers occurred is an issue before me.” When cross-examination ended, her counsel sought to obtain and introduce the records. Respondent’s counsel objected.

But there were no apparent alternative sources of evidence: “…she is the only witness who can speak about these records. She has already given her direct evidence. She has been cross-examined. All that remains of counsel’s right to question her is upon re-direct or, as this stage of a proceeding is also called, upon re-examination.”

Rejecting other heads of admissibility, Justice MacDonald ultimately concluded the Court had the discretion to admit the records and testimony about them.

She found the evidence to be led would amount to “evidence which explains, qualifies, clarifies, minimizes or limits the effect of testimony given in cross-examination or which puts into perspective any facts revealed in cross examination which might discredit the witness”. (Campbell v. Jones, 2002 NSCA 128, para. 307).Citing from R v. Moore (1984), 15 C.C.C. (3d) 543 (Ont. C.A.), the Court said:

The right to re-examine exists only where there has been cross-examination, and must be confined to matters arising in cross-examination. New facts cannot be introduced in re-examination. The judge may, however, in his discretion grant leave to introduce new matters in re-examination and the opposite party may then cross-examine on the new facts. In re-examination leading questions may not be asked. See Phipson on Evidence (13th Ed.). at p. 823-24; Wigmore on Evidence (3rd Ed.), vol. 6, p. 567.

Interestingly, the judge set out the following scope to prepare for that re-examination. She permitted the petitioner’s counsel to discuss the matter with his client:

[7] ….In this case counsel will need to consult with Ms. MacLean to arrange to obtain the bank records and to review their content with her prior to testimony on re-direct. In addition the cases I have reviewed provide for a right to cross-examine the witness about the new evidence given upon re-direct. The cases are silent about further re-direct after that crossexamination but because there may be a need to explain, qualify, or clarify Ms. MacLean’s testimony after cross-examination, re-direct will be permitted but only in respect to testimony given about the records.    


                                                                                                                                                                                                                                                                                                                                                   MacLean v. MacLean 2009 NSSC 126



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